THE COURT: Let the record reflect that this is a hearing out of the presence of the jury.
MR. DAVIS: Your Honor, rather than qualify him as an expert, will you all stipulate for the purposes of this hearing?
MR. FORD: For the purposes of the hearing.
MR. PRICE: Yes, sir.
THE COURT: All right.
EXAMINATION OF DR. FRANK PERETTI BY MR. BRENT DAVIS
My name is Dr. Frank Joseph Peretti and I am a medical examiner with the Arkansas State Crime Lab. State's Exhibit Number 77 I have seen before. I have made comparisons between that knife and certain wounds found in the photographs and in my examination of the body of Christopher Byers. (TR 1782)
Some of the lacerations are consistent with being inflicted with this type of knife.
EXAMINATION OF DR. FRANK PERETTI BY MR. PAUL FORD
I have my autopsies with you. I described every injury, each bruise, each scratch and I measure the dimensions. (TR 1783) This is Michael. These are the photographs of Mr. Michael Moore which the state intends to proffer during my testimony. In State's Exhibit 59A an injury to the neck, chest, and abdominal regions which would be on page 4, paragraph 2. (TR 1785)
In 59A it is my contention that could be caused by the
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pattern on that blade. I did not measure the serration spaces on that blade in my report. I received the knife subsequent to the autopsy. I do not issue a report on examining the knife. It was sent to the other section of the crime lab. I saw it prior to today. I actually handled it previously. (TR 1786)
I measured the serration pattern, but I don't recall what it was. I believe it was about a quarter of a inch between each one. If the spacings of the knife are three-eighths or three-sixteenths and then a quarter. It would be important for the injuries to be caused by a like dimension and this would depend on how the skin is at the time because the skin tends to crease up and fold a little, too. That could account for some minor differences in measurement. Because what we have here is a distance by one-eighth and one-quarter. It is more than an eighth of an inch and it's probably more than a quarter, just a little over a quarter. (TR 1787)
They are spaced by one-eighth and a quarter. Depending on the position of the skin at the time, I would expect to find a larger space in between the abrasions. It's not exact. I don't know if it's the only knife, but different knives have different serrations. If it is it can cause that type of injury. (TR 1788)
I am saying it is possible for a knife of even similar type serration to cause those types of injuries if they were the same distance. Since the skin can account for
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differences, just about any kind of serrated edge can cause one since the skin can twist between an eighth, three-sixteenths, that kind of twist. Skin is not stationary. The skin and the underlying tissue is elastic. I think you could rule out very, very fine serrations. But most serrated knives, depending on the position of the decedent, the elasticity of the skin could cause those types of serrations like that. So most serrated knives could cause these injury. (TR 1789)
State's Exhibit 66B may be a serration from a knife being drawn across the skin. My opinion, based upon a reasonable degree of medical certainty, it is my opinion that that injury may be caused by a serrated knife. It may be caused by another instrument also. It had the appearance. The distance, if you look at it, there is a pattern to it, but it may be caused by another object also. This knife could have caused that injury. (TR 1790).
But anything could have caused it. I do not know what caused that injury. State's Exhibit Number 59A is a photograph, of an injury which I would have to speculate to say that that was caused by this serrated edge.
MR. FORD: Your Honor, based on that answer, I would ask that he be prohibited from making any opinion as to any injuries on Mr. Branch being caused by this knife since he says the only one was that one photograph and it will require him to speculate.
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MR. FOGLEMAN: Your Honor, I believe what he said was, number 1, it was consistent with that, but there were other things that could cause it and that he couldn't say that the other things didn't cause it, but they were consistent. (TR 1791)
THE COURT: Doctor, do you have an opinion based on a reasonable degree of medical certainty whether or not this knife could have caused the injuries that you see in Exhibit Number -
THE WITNESS: 66B.
THE COURT: -- 66B?
THE WITNESS: Which do you refer to, this one particular injury, no other injuries, is that correct?
THE COURT: At this particular time, yes, sir.
THE WITNESS: This injury may be caused by a serration, or it may be caused by another object.
MR. FORD: Would you have to speculate to give an opinion to this jury?
MR. FOGLEMAN: Your Honor, that's not the test.
MR. FORD: Yes, it is, John.
MR. FOGLEMAN: No.
MR. FORD: I am asking this doctor if he is speculating. And I think that is proper voir dire, Your Honor.
MR. FOGLEMAN: You are talking about speculating between two different objects. (TR 1792)
BY MR. FORD:
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Q Doctor, didn't you tell me just a few minutes ago that you would have to speculate to say that a knife of this type of serration pattern could cause that injury?
A Yes, I said that.
MR. FORD: Okay. Then, Your Honor, then at that point, I will ask that he be, in limine, be instructed not to give an opinion that this injury was caused with that knife of that type of serration pattern.
THE COURT: If he has an expert opinion that that knife could have caused the injury depicted in 68B (sic), then he will be permitted to give that testimony.
MR. FORD: But, Your Honor, he just stated that he would have to speculate; therefore, I am asking in limine for him not to be allowed to give that opinion. And I would like for you to rule on that request.
THE COURT: An expert's opinion to some degree is speculation, conjecture, and conclusion. An expert testifies based upon their field of study, their expertise, and their knowledge in their field of study. And they draw conclusions that other experts with the same information could and would draw. (TR 1793)
Now, Doctor, the question properly put to you is based upon your education, your training, and your experience as a medical examiner, do you have an opinion or can you draw a conclusion as to whether or not that knife could have caused those injuries in 68B (sic)?
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THE WITNESS: That knife very well can cause these injuries along with another object.
THE COURT: Is that conclusion one that someone in your field could reasonably draw based upon the information and the evidence at hand?
THE WITNESS: Well, we just have a small injury. That knife of that type is capable of causing that type of injury along with many other different types of objects, too.
MR. FORD: Well, is my motion in limine denied?
THE COURT: Yes. You can bring out a cross examination that many other objects likewise could have caused that injury.
THE REPORTER: That was 66B, rather than 68.
THE COURT: 66B. (TR 1794)
There were other injuries to Mr. Branch which I feel based upon a reasonable degree of medical certainty could have been caused by this knife. There are other injuries, the facial injuries. That would be photographs 71B, 72B, 63B, 62B. A regular straight-edged knife can also cause these type of injuries. There is nothing peculiar about this knife that could cause those facial injuries. Any knife in the world could cause those. (TR 1795)
MR. FOGLEMAN: We were not going to get into that on the state's.
THE COURT: All right.
On Mr. Branch's autopsy, photograph 66B, I believe this
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is on the left thigh or side of the left thigh. I am having a hard time with the orientation because of the way the ruler is situated and I can't pinpoint it on the autopsy. Some of the injuries I grouped together, also. (TR 1796)
Well, I grouped a lot of them, the small ones together. So, otherwise, the autopsy would be what, 50 pages. There is no particular description of it, of the injury on Mr. Branch the way there was with Mr. Moore. On 73C, I am referring to abrasions like these. Well, at the time of autopsy, I didn't measure each one because there were literally hundreds of them. It would be hard to do with the ruler here because it's not one-to-one, okay, the measurements; so, you can only estimate somewhat. But it's not a one-to-one ratio. (TR 1797)
This pattern, I mean, there is like an area of clear separation. This pattern here could cause those type of injuries. While it is consistent or possible, I can't say absolutely that that pattern there and that pattern on that are the same because they could be different. (TR 1798)
This pattern is consistent with causing these type of injuries. Also a similar knife of this pattern could cause these injuries. A number of serrated knives that have this, the survival type knife that generally have a serrated edge on the top as opposed to the cutting blades, any number of those types of knives could have caused those injuries reflected in 73C. There's nothing magical about this
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serration pattern Look at the autopsy of Mr. Byers in 73C. In this report I am referring to the genital and anal injuries. It's on page 4. (TR 1799)
Reading from the report, I noted, "The gaping defect was surrounded by multiple and extensive irregular punctate gouging type injuries measuring from one-eighth to three-quarter inch and had a depth of penetration of one-quarter inch to one-half inch." It depends whether you would expect them to be regular based on that blade as opposed to irregular at the time if the knife was being twisted or if the decedent was moving at the time. Someone moving could cause it to become three-quarters of an inch when there is no blade edge there that would be three-quarters of an inch. The skin is going to tear. Photograph 70C is basically just a larger angle that shows the same type injuries. 70C is a general overview. 73C is a close-up of the injuries. (TR 1800)
There is not ruler in 71C. This is a photograph showing the anal region. We have to take photographs. We have to separate the buttocks region; so, the picture is more distorted, like round. So you are looking it, it is pulled back this way. The pattern of the abrasions in that photograph are distorted. Because I or someone else is pulling the buttock apart to take the photograph. That photograph does not fairly and accurately reflect the true pattern of that injury, because it's pulled apart.
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MR. FORD: Your Honor, at that point, since it's not a fair and accurate representation of that injury, and that's the reason we discussed in chambers that that photograph is offered to show that abrasion. And he said that is not a fair and accurate representation of it, that it is distorted. We would ask that it be excluded on that basis. (TR 1801)
MR. FOGLEMAN: Your Honor --
MR. FORD: And based upon the earlier arguments we made regarding the fact that it shows the anus which the Court excluded that photograph on another one of the boys because it had no real value. And when you add that argument to the fact that he indicates that the abrasion pattern is distorted and not a fair and accurate representation, we feel that those two factors combined together should exclude that photograph.
MR. DAVIS: Your Honor, as I understood him and I may have misunderstood that when Mr. Ford uses the term "distorted," what he said is, this is an abrasion pattern consistent with what you would see with the buttocks basically being pulled apart.
THE WITNESS: That's correct.
MR. DAVIS: Now, when he says that that distorts it, we don't know but what that wasn't the situation when the wound was inflicted. (TR 1802)
All we know is, and what I think the doctor can testify and what he has, is that that injury reflects the serrated, a serrated edge and that this type of weapon has a serrated edge
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on it and that that injury is one of others that he has identified that are consistent with the serrated edge on that knife.
THE COURT: Well, he can testify just exactly as you outlined without the photograph if the photograph is a distortion. But I am not sure a distortion is a correct statement, although the doctor said it. It shows the line of serrations or the cuts. But what I take his testimony to mean is that by spreading the buttocks, it spreads out those lines. They are not in true proportion. Is that what you --
THE WITNESS: Well, yes, because I have to take the photograph. I have to stretch the buttocks. And maybe distort is the wrong term. It's going to alter it because you put pressure on it to take the photograph.
MR. FOGLEMAN: But, Your Honor, if the wound was caused when the buttocks were spread in the same way, then it wouldn't be a distortion if the wound was caused in that manner.
MR. FORD: Is that your testimony, Doctor, what you said? (TR 1803)
MR. FOGLEMAN: Doctor, if the person who has caused the wound or somebody else had spread the buttocks and then caused the wound, would it be a distortion of the wound if it was caused in that manner?
THE WITNESS: Well, no. It wouldn't be distorted if the buttocks was open, if it was spread. Then, again, I think
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that for clarification, if I didn't spread the buttocks, we wouldn't be able to take the photograph because we wouldn't be able to see.
MR. FORD: I just think it's misleading. He has indicated that it alters it or distorts it. Those weren't my words, and I didn't suggest them.
THE COURT: Doctor, let me see if I understand it. You are saying that Exhibit 71C depicts injuries that could have been caused by a knife similar to the one before you?
THE WITNESS: That's correct.
THE COURT: And in order to describe and depict photographically those photographs, those injuries, it is necessary to spread the buttocks so that you can see them?
THE WITNESS: That's correct.
THE COURT: I will allow it as long as there is an explanation given as to why it was necessary. (TR 1804)
I can show where on the autopsy of Mr. Byers I referred to that injury. Well, the fifth and sixth of the autopsy.
MR. PRICE: Judge, I have a brief proffer. (TR 1805)
EXAMINATION OF DR. FRANK PERETTI BY MR. VAL PRICE
I had an occasion to make comparisons with the John Mark Byers knife and the wounds that were found on Chris Byers. I have an opinion if the wounds that I found on the body of Chris Byers were consistent with wounds being inflicted by this type of knife. Some of these serrated patterns were very small. And this does have a small serrated pattern. Small
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serrations are capable of causing that type of injury. So, this serrated pattern- is consistent with causing some of the smaller serrated wounds. There were some of the smaller serrated wounds found on Chris Byers. (TR 1806)
EXAMINATION OF DR. FRANK PERETTI BY MR. BRENT DAVIS
Particular wounds I say could have been caused by the serration type pattern on the knife that Mr. Price just showed me, are some of the smaller serrated patterns surrounding the buttocks region, number 71C. The larger serrated patterns that I showed you earlier, those would be inconsistent with this particular serration on the knife. No other photographs in here that I found that indicated that same serrated pattern. (TR 1807)
EXAMINATION OF DR. FRANK PERETTI BY MR. PAUL FORD
The skin I described as having some elasticity, how it may have folded or twisted, could have affected the injuries and, in fact, this knife -- the second knife you looked at based on how the skin may have been twisted and its elasticity - the small ones could be caused by that serration pattern. Not the very, very large ones because we have larger a space. It depends on the position of the person with the knife and the position of the deceased and the movement, it's possible.
MR. DAVIS: At one point, they had some photographs that they had turned around and they are no longer turned around so they can identify them, but they were going to make a record -- I thought. (TR 1808)
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THE COURT: Well, as long as the doctor, and you can bring it out on cross-examination, that many other weapons of similar design could have caused the injuries reflected, as long as he explains that in order to photographically display the injuries that he found it was necessary that spread the buttocks, and therefore, distort it to some degree. (TR 1809)
I mean, I am going to allow it because that's only way you can show it by a picture. He can certainly testify to it, but as long as it's explained that by manipulating the buttocks, that that caused some spreading of the gap between the injuries, that can be explained, then I am going to allow it.
It didn't distort the injuries that were present. it distorted them photographically. Is that what you are saying?
THE WITNESS: Yes.
MR. DAVIS: Judge, one thing we would ask is a motion in limine. Mr. Price in that motion referred rather dramatically to the knife as the "John Mark Byers" knife. And during the course of the proceedings until that knife has been introduced or there is evidence established to introduce that knife, we would ask that it be referred to by exhibit number rather than by reference as Mr. Price has done in this hearing.
THE COURT: Right now, it's going to be Defendant's Exhibit No. 7 (sic). (TR 1810)
(RETURN TO OPEN COURT)
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EXAMINATION OF DR. FRANK PERETTI BY MR. BRENT DAVIS
My name is Dr. Frank Joseph Peretti and I am a medical examiner for the State of Arkansas. I graduated from medical school in 1984. I began my training in anatomical pathology, at Brown University, Providence, Rhode Island, from 1985 to 1988. During that time, I was a medical examiner on a part-time basis for the state of Rhode Island. After the completion of my training in anatomical pathology at Brown, I went to the office of the Chief Medical Examiner, in Baltimore, Maryland, where I did one year of training in a subspecialty in forensic pathology. That was from 1988 to 1989. After completing my training there, I remained on as staff pathologist at the University of Maryland, the medical school in the office of the Chief Medical Examiner. I left Maryland in August of 1992 when I came to Arkansas. (TR 1813)
I received some specialized training in the field of forensic pathology. Forensic pathology is a subspecialty that deals with pathology. And pathology is the study of disease. We have different types of pathologists. We have the anatomical pathologist; a hospital pathologist who does breast biopsies. A surgeon sends him a specimen. A forensic pathologist is someone who has had training in anatomical pathology but specializes in interpretation of patterns of injuries in determining cause and manner of death. What I do on a day-to-day basis is perform medical legal autopsies
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generate autopsy reports, and testifying in court.
MR. DAVIS: Your Honor, at this time, we would submit Dr. Peretti as an expert in the field of forensic pathology.
MR. PRICE: No objection. (TR 1814)
MR. FORD: No objection.
THE COURT: You may proceed.
I had occasion to perform autopsies on the bodies of Michael Moore, Stevie Branch, and Chris Byers. The first thing we do is we take the height and weight. Then what we do is we take the as-is photographs, as the body comes in. Depending on the type of case it is, what we do is we take the as is photographs of the body as it presents. After we have documented by the photography, we clean the body off, clean the body up, and we take additional clean photographs. We document any and each of the injuries situated on the body. After that, we do an external examination. (TR 1815)
An external examination is where we look at the general features of the body, such as color of the hair, color of the eyes, injuries and anyunusual features on the body.
After that, we proceed with the actual autopsy, where we examine the internal structures or organs. We examine the structures of the neck, the chest, the abdomen, the pelvis, and the head. During the time of autopsy, we would look for any evidence of natural disease, any abnormalities, and injuries. We take specimens in toxicology to determine the presence of drugs or alcohol in the body fluids and get blood,
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bile, urine, and vitreous. The vitreous is the fluid behind the eyeball.
After that, by state law, I have to issue a death certificate. I also generate an autopsy report which is used in criminal and civil procedures.
I followed that general procedure in performing autopsies on Michael Moore and Stevie Branch and Christopher Byers. I took photographs I went through the process of performing the autopsy in order to preserve the evidence in conducting the autopsies. (TR 1816)
State's Exhibit 59A, 61A, 62A, 63A, 64A, 65A, 66A, 67A, 70A, 71A, 72A, 73A, 68A, 60A, and 86 are the photographs of James Michael Moore. (TR 1817) These photographs, are they true and accurate representations of the body of Michael Moore at the time I performed the autopsy back in May of 1993. (TR 1818)
(State's Exhibits 59A, 61A, 62A, 63A, 64A, 65A, 66A, 67A, 70A, 71A, 72A, 73A, 68A, 60A, and 86 are received in evidence.)
Exhibit No. 70B, 72B, 71B, 69B, 66B, 68B, 67B, 65B, 64B, 63B, 62B, 61B, 60B, 59B, and 78, are the photographs of Steven Branch. Those photographs fairly and accurately representations of the condition of the body of Steven Branch at the time I performed the autopsy. (TR 1819)
They would be beneficial to me in explaining and describing my findings.
(State's Exhibits 70B, 72B, 71B, 69B, 66B, 68B, 67B, 65B, 64B, 63B, 62B, 61B, 60B, 59B, 78 are received in evidence.)
Finally, State's Exhibit 59C, 62C, 61C, 63C, 64C, 65C, 66C, 67C, 68C, 69C, 72C, 70 and 71C and 73C.
These are the photographs of Christopher Byers with the identification label 331-93. (TR 1820) They fairly and accurately represent of the body of Christopher Byers at the time I performed the autopsy. These photographs would assist me and be beneficial to me in explaining my findings.
(State's Exhibits 59C, 62C, 61C, 63C, 64C, 65C, 66C, 67C, 68C, 69C, 72C, 70 and 71C and 73C are received in evidence.) (TR 1821)
I have with me a copy of my autopsy report regarding Michael Moore. The date reflected that I performed that autopsy was May 7th, 1993. Michael Moore weighed 55 pounds and was 49 and one-half inches in height. I can generally tell the jury what type injuries or the injuries I found on the body. I have these divided up into head injuries; neck, chest, and abdominal injuries; anal-genital region; lower extremities; back injuries; upper extremity injuries; internal evidence of injury; and evidence of trauma. (TR 1822)
Using these photographs, I can describe what head injuries I found regarding Michael Moore.
State's Exhibit 65A shows a frontal view of Michael Moore. We can see different injuries. We have a laceration on the scalp region here. Here, we have an abrasion. When I
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use the word "abrasion," I mean a scrape. When I use the word contusion," I mean a bruise, like a black and blue. So I will try to use laymen terminology. (TR 1823)
We have an abrasion on the top of the right side of the scalp. On the left, we have a laceration. Here on the face, on the nose, we have a lot of abrasions and scrapes. And on the lips, we have some injuries which you can see in an additional photograph close-up. On the side of chest, we have some abrasions. We have a pattern of serration on the front of the chest near the right clavicle region. On State's Exhibit 61A, we have two impact sites or abrasions, scrapes.
State's Exhibit 62A is showing three lacerations over the scalp region. In this photograph, we can see some abrasions on the left side of the face and the nose, or scrapes, where I have my finger pointed. I can tell what differences between the type of injuries we see in 61A and the lacerations on the side of the head that as seen in 62A, what could cause the difference in the type of injuries. On State's Exhibit 61A, we have an injury that consistently being caused by an object with a broad surface area, an irregular surface area. (TR 1824)
On 62A, we have a laceration in here. These type of injuries could be caused by an object with a small surface area, such as maybe the handle of a broom or a piece of wood or a two-by-four or an edge of a log. That is why we have the difference in the type of injuries. There's two different
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patterns of injuries.
In photograph 62A that would be caused, either by some item that's smaller in circumference, in the surface area. The injury in 61A would be caused by a broader surface, an object with a larger surface area. Based on my experience and expertise and training, I would say that two different weapons or two different items caused these injuries. State's Exhibit 63A is showing the ear. Down here we can see some abrasions, a faint area of contusion over the forehead region towards the back of the ear. We can see some abrasions or scrapes. State's Exhibit No. 64A is a close-up of the ear showing the abrasion, contusion or bruising behind the ear, and this abrasion situated on the scalp. (TR 1825)
State's Exhibit 65A is showing on the upper inner aspect of the lip which is contused and has overlying superficial cuts. The dark discoloration is the bruising. State's Exhibit 66A is showing the lower lip and the bridge in the nose, the bridge of the nose. The bridge of the nose, we can see the abrasion, scrapes in here on the lower lip. If you look very carefully you cansee that discoloration there, that faint discoloration, that is bruising or a contusion.
In my experience as a medical examiner, those types of injuries to the ears and mount we generally see in children who are forced to perform oral sex. The punctate scratches to the nose and to the upper ribs, you can get the lip injuries by putting an object inside the mouth. You can get those type
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of injuries also from a punch or a slap, or you can get those type of injuries from the hand over the mouth and pressing the hands very tightly up against the mouth. (TR 1826)
State's Exhibit 67A shows the hog-tying fashion of the hands that are hog-tied to the feet behind the back. This is the photograph showing the shoelaces. State's Exhibit 70A and 71A show abrasions. 71A shows abrasions or scrapes over the back region. State's Exhibit 71A shows an abrasion or scrape on the side of the neck. 72A shows the washerwoman wrinkling of the hands. By washerwoman wrinkling, when the hands are submersed in water, you put your hands in the water, you know how your hands wrinkle. That indicates the bodies were in water for a prolonged period of time.
State's Exhibit 73A also shows the hands, but on the right finger, excuse me, the left finger, left second finger, you can see the cut here on the hand. (TR 1827) Generally when we see injuries on the hands and on the forearms, those are the type of wounds we call defense type wounds, when people try to defend themselves. If someone is coming at you with an object, your reflex would be, the first thing you do is you to put your hand up; or if you are on the ground, you put your feet up. You want to try and protect your body.
I found defense wounds in regard to Michael Moore; he had defense injuries of the hands. State's Exhibit 68A is a photograph of an abrasion that's padded and has a serrated appearance to it, and that is 68A.
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State's Exhibit 60A is a photograph of the body before it has been cleaned up. The blackish-brown material on the front of the body is mud and debris. But up here are abrasions and apparently serrations here on the front of the chest. You can see some injuries to the face and to the lips. State's Exhibit 86 is a photograph of the back of the arm showing abrasions or scrapes. (TR 1828)
The autopsy does reflect kind of a list of my findings as far as injuries are concerned on Michael Moore. My findings were multiple injuries with evidence of drowning. So the multiple injuries consisted of the head injuries, which consisted of the multiple facial abrasions or scrapes, contusions or bruising. We have multiple scrapes and contusions of the lips. Multiple scalp lacerations and contusions.
There were multifocal subgaleal contusions and edema. By "subgaleal," at the time of autopsy, we reflect the scalp back. We are looking at the scalp from the inside out. And underneath it, we found edema or swelling, and hemorrhaging. Also there are multiple fractures of the calvarium. That is the top of the skull and the base of the skull. There was subarachnoid hemorrhage and contusions or bruising involving the entire brain. The skull fractures, in conjunction with those obvious outward signs of head injuries seen in the photographs. (TR 1829)
Underneath those injuries that I pointed out earlier were
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skull fractures. Then the other findings including binding of the wrists and ankles in a hog-tied fashion. There were multiple bruises, scrapes, and lacerations of the torso and extremities. We have the defense type injuries of the hands. There was also anal dilatation with hyperemia, hyperemia or redness of the anal-rectal mucosa. "Anal dilatation," in laymen's terms means that the anal orifice was dilated. Hyperemia of the anal-rectal mucosa, in laymen's terms means reddening or congestion of the mucosa. That is the internal lining of the anus and rectum. Dilation of the anus and reddening of the rectal mucosa could be from putting an object in the anus. It could be due to the fact that postmortem relaxation and the fact that the body was in water. And that would alter things, also. (TR 1830)
We have evidence of drowning. And we have the wrinkling, the washerwoman wrinkling of the hands and feet.
We had petechial hemorrhages of the heart, lungs and thymus. There are little hemorrhages that are caused by lack of oxygen that may be seen on most people who die. It is truly a nonspecific finding. But we do find this in drowning victims. Pulmonary edema and congestion. In laymen's terms, the lungs are filled with fluid, water. We have aspiration of water into the sphenoid sinus. The sphenoid sinus is a little cavity at the base of skull. When he was in the water, he was breathing, and he sucked water up through his nose into the sinus area.
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There was no evidence of any disease which would have contributed to death. There was evidence of terminal aspiration. Terminal aspiration is when you have regurgitation of the stomach contents due to postmortem relaxation of the esophagus. (TR 1831)
Instead of the bowel working correctly, at the time of death, it loosens and gastric contents back flow into the esophagus and other passages. That's a very common finding in most people who die. The aspiration indicates that Michael Moore was still breathing at the time he was placed in the water. As part of my job, I formulate an opinion as to the cause of death of the individuals I do an autopsy on. My opinion as to the cause of death of Michael Moore was multiple injuries with drowning. The head injuries that he sustained alone, would have been life threatening and would have caused his death had he not drowned. (TR 1832)
I also performed an autopsy on the body of Steven Branch. (TR 1833) Steven weighed 65 pounds and was 50 inches in height. When his body was presented to me at the crime lab, it was still bound in the same fashion as it was when the body had been recovered. The body was bound right hand to the right ankle with a black shoelace. The left hand was bound to the left ankle with a white shoelace. In my visual examination of the body of Steven Branch, I discovered head injuries. There were chest injuries. There was genital-anal injuries, lower extremity injuries, upper extremity injuries,
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back injuries, and evidence of submerging.
State's Exhibit 70B shows abrasions or scrapes overlying the facial area, the eye, the lips and the chin. Of the injuries in 70B, those are to the right side of the face of Steven Branch. (TR 1834)
Also on State's Exhibit 72B shows multiple confluent area of abrasion, scraping involving the face. Also overlying this area, we have multiple, irregular, and gouging type cutting wounds. Those cut marks are consistent with some sharp object such as a knife. We generally see these type of injuries, "irregular gouge marks," when an object such as a knife or a glass or any sharp object is put into the skin and either the person doing the stabbing is twisting and pulling the knife, or a combination of the person being stabbed -- they are not standing still, they are going to be moving around. So as they are moving, the knife is going to twist. And as the knife is being pulled out, it's going to pull out all the soft tissues, the fat, in the cheek region. And also in this photograph, you can see that the ear is abraded and it is contused, like it was scraped, the bruising and it's overlying scratches. And we can also see abrasions and superficial cuts involving the scalp region. (TR 1835)
State's Exhibit 71B is a close-up. In this photograph, you can also see the scraping and we can see the gouging type injuries here. What is important to note, is that on the forehead region, we have an abrasion or scrape that left a
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pattern. And inside the pattern, you can see, it's almost like a dome shape. It has this little area of square abrasion inside here, right on the top of the forehead.
And that injury you see, it's typical of a belt injury. The belt has a little buckle. And that buckle has that little one that goes back and forth, left and right, and the base of the latch. And that type of injury we typically see with belts. And also, if you look very closely, you can see on the face overlying the area of the abrasions, you notice a pattern here, but a lot of them are obscured by the scraping.
State's Exhibit 69B is showing some scrapes on the lower extremity and the abrasions, the binding abrasions from the ligatures, this darkened area at the ankles where the ligature was fastened.
State's Exhibit 66B is showing an injury that could be caused either by a serration from a knife or another type of object. Right here, the patterns were -- State's Exhibit 68B and 67Bshows the washerwoman wrinkling of the hands. (TR 1836)
Also, on State's Exhibit 68B is a cloth bracelet that I left on the body so he could be buried with it. On State's Exhibit 67B, you can also see the wrinkling of the hands. But you can note the abrasions from the ligatures being tied to his wrist. And that is the area of dark discoloration on the wrist here.
State's Exhibit 65B and 64Bis showing a penile injury.
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Here on State's Exhibit 65B, all we can see is we have a photograph of the head of the penis and mid shaft of the penis. And you can note here, the dark discoloration is bruising. And overlying the area of bruising, if you look very closely, you can see a small area of bruising and fine linear scratches.
Now, State's 64B is showing the under surface of the penis. And here we can see the injury and part of the head and shaft of the penis. But what is important to note in this photograph is that we have a clear line of demarcation here. Where we have this area which is involved and we have this nice circumferential band going around the penis, which you can also see on the front of the penis, the anterior part of the penis, this line of demarcation which is separating the injury from the uninvolved skin. (TR 1837)
You can see those type of injuries in two situations. One, if an object is wrapped around, like a belt, for example, tightly around the penis. Or those type of injuries are more characteristic when you see young children who have oral sex performed on them because the little scratches are the teeth marks.
In State's Exhibit 63B, 62B shown here, now here you can see all the -- on 63, you can see all the abrasions or scrapes. You can see this darkened discoloration. That is the bruising of the ear. If you look very, very closely, you can see the fine, little scratches which are fingernail marks.
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And also State's Exhibit 62B is showing, what I am emphasizing in this photograph is the back of the ear here showing the bruising and the abrasions and the fine, linear scratches.
On the bruising to the ears and the mouth injuries that you described in Michael Moore's case. They are similar. On State's Exhibit 61B, the photograph of the back of the head showing that if you recall the Moore child had a similar type injury to the back of the head, a big area of abrasion, type of injuries that you see inflicted with an object with a broad surface area. (TR 1838)
There was an underlying skull fracture associated with that injury. In association with that, the base of the skull, the back of the skull, showed a three and one-half inch fracture which had multiple extension fractures. Let me put it in laymen's terms. If you have ever dropped an egg, and you see how you have the fractures of the egg, that is basically what happened. And also the brain showed multiple focal areas of hemorrhage, contusions, and bruising.
It is fair to say that you have to have a significant force or trauma to cause skull fracture and brain hemorrhage.You need a lot of force. And State's Exhibit 60B is a photograph showing the back of the neck, showing an area of abrasion, irregular type abrasion and scraping of the back of the neck.
State's Exhibit 59B is an area of the inner aspect of the thigh, where we see a band. You have a pattern here of a
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band. It is diagonal, and you have these two areas, and you can see a darkened area, the contusion, and an area of pallor, or paleness, inside. (TR 1839)
So that indicates some sort of object. If you get your finger and keep it up on the wrists, what happens is, as soon as you pull your finger off, you are going to see an area of blanching. On the sides, you're gonna see the redness when the blood is pushed out of the vessels. And so this the general principle that we see here where an object left this pattern.
State's Exhibit 78 is a photograph, I believe, of the back which shows a small area of abrasion or scraping.
I also found evidence of injury to the genital-anal area. The anus was dilated. There were no injuries noted on the anal and rectal mucosa. The lining of the rectal and anus showed mild hyperemia or reddening. But no other evidence of injury was noted. There was no injuries noted to the testes or the internal aspects of the scrotal sac.
I found evidence of drowning in regard to Steven Branch. The hands and feet showed the wrinkling. There was fluid in the lungs or the pulmonary edema, congestion. There was a lot of bloody, frothy fluid -- that is the fluid in the lungs that has no place to go. (TR 1840) So what would happen, it just backs up into the trachea or windpipe. And we have the watery fluid was aspirated into the sphenoid sinus. The cuts on the left side of Steven Branch's face would be consistent with
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some knife or sharp object. And the injury, the skull fractures to the back of his head would be consistent with a blunt type object.
In performing your duties as medical examiner, what was my official opinion based on my experience,
training, and the autopsy performed on Steven Branch as to my opinion as to the cause of death was he died of multiple injuries with drowning. The head injuries in and of itself, had he not been submerged in water would have caused death. (TR 1841)
I also performed an autopsy on the body of Christopher Byers. The height and weight of Christopher Byers was he weighed 52 pounds, was 48 inches tall. He was also bound at the time that I performed the autopsy. Let me describe to you in what fashion he was bound. The right wrist was bound to the right ankle with a black shoelace, and the left wrist was bound to the left ankle with a white shoelace. Well, Christopher also had head injuries, neck injuries, genital-anal injuries, right leg injuries, left leg injuries, back injuries, right arm injuries -- right arm injuries, and left arm injuries. (TR 1842)
59C is a facial photograph. Here you see there are abrasions. But also note that you can see here and here you have a pattern type injury. See this curvy, linear or half moon, these little round areas right here. These round areas have the appearance of like a stud on a buckle, one of those
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round studs, and sort of bell shaped here under the nose.
State's Exhibit 62C is a close-up photograph of an injury I just described. It is very faint. You can see it here, in this photograph this little round area this little punched-out area on the skin. State's Exhibit 63C is showing injuries to the ear, the scratches, the bruising of the ear. But also you can note the eyelid here that has a contusion or black eye.
State's Exhibit 61C is showing a little abrasion or scrape, a small one to the back of the neck. State's Exhibit 64C is showing the ear again. It is the right ear. showing the bruising and scrapes and little overlying scratches. (TR 1843) Those were injuries to the ear in regard to Chris Byers and those similar to the injuries that I found to the ears of Michael Moore and Steven Branch. He also have the comparable injuries to the outside of his mouth and the mouth area that the other two had.
State's Exhibit 65C is a photograph of the inner aspect of the thigh. And here these areas, this darkened area here, all the bruising, contusions on the outer thigh. We have injuries that are antemortem, injuries before death. We have perimortem injuries, injuries around the time of death; and you have postmortem injuries. A lot of the injuries that you see, the hemorrhaging that means your heart is pumping, your heart is beating and you are able to bruise. Some of the injuries have the yellow discoloration to them and a lack of hemorrhage. (TR 1844) And those injuries are injuries that
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we normally see in the postmortem period, after death.
Then you have the perimortem injuries. Those injuries when you look at the underlying fatty tissue there is a slight amount of hemorrhage. That means that the heart is still pumping blood, but it's not pumping to full capacity.
There are postmortem injuries. State's Exhibit 66C shows the inner aspect of the upper lip. And you can see all the bruising and dark discolorations inside the lip.
State's Exhibit 67C is showing the lower lip. And here you can see there is a laceration with the hemorrhage. There is hemorrhage around the gum line.
State's Exhibit 68C is a photograph showing the back of the skull. We have a laceration right here. That type injury to the back of the scalp, could be consistent with the broad blunt object that you described in regard to the other injuries to the other boys. (TR 1845) But, it's more consistent with an object that is narrower. And sometimes we see this type of injuries, for example, like a piece of wood like this railing here, the sharp edge can give that type of injury. Or an injury with an object such as a broomstickcould cause that type of injury.
State's Exhibit 69C is a photograph of the genital region showing genital mutilation. Here it is important to note here that you can see where the, there is a close-up photograph of that. Here's where the penis and scrotal sac and testes should be here. We have all these gouging type injuries that
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have been described similar to the one that we saw in the face. But also it is important to note here that we have contusions and bruising of the inner aspect of the thighs. These type of injuries we commonly see in the female rape victim. And also there you will note on the feet, you can see some bruising, contusions on the ankle, and you can see where the ligature was tied, these marks here.
State's Exhibit 72C is also showing the back, the side of the left thigh and the right thigh. Here is a pattern here and it's a diagonal. Here we have all this bruising. Here we have gouging type wounds, and we have these cuts around the anus. (TR 1846)
State's Exhibit 70C is a close-up of the genital region. Here we can see that the skin of the penis has been literally removed or carved off. And what we have here is the shaft of the penis without the skin on it. And all around it, we have all these cutting, gouging wounds. The scrotal sac and testes are missing.
State's Exhibit 71C is showing the anal orifice which is dilated. And below, we can see cutting wounds here on this side and this side here. We can see, if you look very closely, you can see all the hemorrhage indicating that he was alive at the time. You have all this bleeding here in the soft tissues.
State's Exhibit 73C is a close-up view of the injuries, the gouging type wounds, cutting wounds that we have in the
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inner aspects of the thigh. This red area here that we can see is the shaft of the penis. There is a serrated type pattern here. (TR 1847)
When I say , "serrated," I mean, for example, a typical serrated knife is a steak knife, that pattern of serrations.
And in this case, the items that I marked there seems to be, those three or four wounds, there is a distance between those wounds. And that would be consistent with the serration of the blade that inflicted that wound, providing there is no twisting and turning. The surface that we are looking at where I circled the indications of serrated injury, that is the inner aspect of the thigh; so, it is curved. When you look at the thigh, it's rounded. It's not completely flat.
The top of the skull, there were no fractures. The calvarium is the top of the skull.However, the base of the skull,, back of the head here, the base of the skull,that showed a fracture that measured three and one-half inches in length. (TR 1848)
And extending from this fracture are multiple smaller fractures which involved the entire base of the skull.
So, it goes back to what I explained earlier. It is like you have an egg and you drop it. You see those fracture lines. And that is what has happened to the base of the skull. And associated with this, we have hemorrhage of the brain, contusions, bruising of the brain. But also on the left posterior medial cranial portion -- the base of the skull
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is divided into regions.
We have the anterior portion where our eyes are. We have the middle portion basically where the ears are attached. And we have the posterior portion, or the back of the skull. So if you divide it up, the symmetrical right side and left side. So on the left posterior side medial -- by "medial," I mean toward the midline, towards the spinal column not away from the spinal column, we have a one-quarter inch ovoid punched out fracture.
That fracture was punched out. It was round, measured a quarter of an inch and was punched out into the brain. (TR 1849)
I have indicated in my testimony regarding more than one of the boys that there were injuries to their scalp that was consistent with an object approximately the size of a broom handle.
Looking State's Exhibit Number 53, an object this size and this diameter be consistent with those injuries I noted were consistent with a broom handle type object. An object of this type is capable of causing those type of injuries.
(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH)
MR. FORD: Your Honor, at this time it's our opinion there's been a lack of foundation that this stick had anything at all to do with homicides. The fact that it could cause the injuries -- he said any number of things could cause them. There's no indication of blood, fiber, tissue, etc. on
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this stick. (TR 1850)
THE COURT: Well, it was found at the crime scene. There are photographs of it when they were removing the bodies. The doctor testified it could have caused the injuries and to me that's a sufficient link and would make it relevant. You could certainly argue it could have been many other things. But that's a circumstantial link that the jury could conclude cause the injuries.
MR. FORD: In anticipation of the next thing, we believe he'll probably show him the larger stick. We would make the same objection that there's been an absence of any connection --
MR. PRICE: We join in both objections.
THE COURT: Again, the same thing would be true if the doctor testifies that the stick is consistent with an object that could have caused the head injuries and it being found at the crime scene, there's a causal connection and it becomes circumstantial evidence from which a jury could form an inference. I'm going to allow it.
MR. FORD: I anticipate his third question may be showing him the knife and asking him if the serration pattern --
MR. DAVIS: -- He's reading my mind. (TR 1851)
MR. FORD: We previously made a record outside the presence of the jury regarding that knife. We don't want to waive our objection by you announcing --
THE COURT: You're not waiving any objection you've made.
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MR. FOGLEMAN: Your Honor, your ruling on that?
THE COURT: I allowed it into evidence. I thought I did. (State's Exhibit 53 is received in evidence.)
In my testimony regarding the three victims, I indicated that certain of the head injuries were caused by what I described as a larger surfaced blunt object. An object of this nature would be consistent with that. (TR 1853)
(State's Exhibit 55 is received in evidence.)
State's Exhibit No. 77, I have had a chance to look at that knife and examine that knife. I referred in my testimony to wound patterns on the three victims that were serrated in nature. There are injuries consistent with a type of serrated pattern. (TR 1854)
State's Exhibits 82, 81, and 80, I believe these are the, sacks indicate they are the ligatures. I removed the ligatures from the body, the shoelaces off the bodies of the three victims when I performed the autopsy. And then I sent those items to another area of the crime lab for further analysis. There is a process that I follow whereby I make sure that it's identified by case number and the proper chain. of custody is maintained. I did that in this case. (TR 1855)
In performing the autopsies on these three victims, there was no evidence of animal activity, insect bites. If an insect such as mosquitos, those types of things, if the children had received insect bites prior to the time of their
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death, then, you should see them prior to death. That would be different if insect bites were received after death. After death I don't think you would see them for the simple reason you need to be alive to have the reaction so it can swell and itch. I did not find anything, any insect bites on any of the three victims that I did autopsies on. (TR 1856)
I did not deal with the issue of time of death or mention that in my autopsy report. Determining the time of death is more of an art, not a science. I mean, on TV, they can tell you someone died at 2:30. Realistically it is not possible unless you were there and witnessed the person who died. So what we do is you have to give ranges, intervals to the time of death.
And even then when one gives ranges or intervals, it is basically an estimate. There are a lot of factors, but one that is most important is you need to know when the person was last in the light and when the person was found dead. (TR 1857)
So you have the postmortem window period. And in that window period, there are many other factors that come into effect such as, for example, the temperature outside humidity, if the bodies were found buried underground, if they are on top of the ground, or if the bodies are in the water
These are all factors. The modality in which, the way in which a person who died is also in point. Now, if a person, for example, loses a lot of blood, it puts a different
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interpretation on it as if someone was just to die walking down the street and collapse.
All of these factors, most of them are environmental factors that need to be taken into consideration. I was not at the scene when the bodies were found. Arkansas has a coroner system. And the coroner of Crittenden County, he went to the scene. He pronounced the three boys, and he issued his report, based on his findings when he arrived at the scene. (TR 1858)
And in order to make an estimation as to time of death, I would need to know the temperature of the water that the children were submerged in. And I would need to know what type of clothing, if any, they had on. And I would need to have a rectal temperature taken. You can use body temperature, but it's not as accurate as people make it to be, but that's one of the factors that are taken into consideration.
All of those things are information that I would need in being able to give an estimate, along with the rigor mortis, the rigidity of the body. In this particular case, the factors that were provided to me was the lividity when the coroner arrived at the scene. Now, there are some I would like to explain so the jury will understand what I am talking about. There are some terms. You have rigor mortis which is a stiffening of the body. (TR 1859)
We have livor mortis, 1-i-v-o-r mortis or lividity.
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Lividity is the postmortem settling of the blood into the capillaries or blood vessels which have lost their tone after death. So that happens on everybody. When we die, we all go through rigor mortis. We all develop lividity. There are factors that I take into consideration when trying to give an estimate or a range for the time of death. Well, lividity is one of the major criteria to see if the body has been moved. Now, one thing I think didn't explain and I would like to clarify. Lividity goes through different stages, okay. What we have, we have lividity which is called unfixed. Then we have lividity that is fixing and lividity that is fixed.
Now, unfixed lividity means up to a certain period of time if someone dies on their back up to normal environmental conditions, if I was to die in this room right now and I was lying on this floor eight to ten hours, all my blood would settle to the back of the body. Now, if you were to examine my body two hours after I die, the lividity, if you were to touch it with you finger, it would blanch. (TR 1860)
In other words, you would be able to push the blood out of the blood vessels. So it is called blanching. But if I was to still be the floor and around eight hours you would come in and you would press the lividity, you would see it's fixing. It is in that stage where it is beginning to fix and unfix.
And fixed lividity is when you go there and no matter how much you press it, it is going to stay in that one spot. So
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we use lividity, for example, if someone was to die, if you would find someone in the field and the lividity -- and he's found on his back, and all the lividity is fixed on the front of the body, we know that the person died in some other location and was dumped there because the lividity is not consistent with lying on its back.
The time at which lividity becomes fixed is dependent upon environmental factors. Environmental factors and the state of health of the individual is very important also. The degree of the fixed, or the degree that the lividity is fixed is based on also the extent to which the body has remained in a single position. (TR 1861)
The cooling, if the body is quickly cooled such as being submerged in water, that would retard the fixing of lividity. I said that part of my job is to prepare an autopsy report. In this particular case, I was particularly cautious about who I released that information to and when I released it. What we do in the crime lab is the day we do the autopsy we issue a sheet. It is called a "Cause of Death" sheet. This sheet automatically goes to the prosecutor of the county of death, the coroner, and the investigative agencies handling the death investigation.
We do that so they will have immediate feedback. Because a lot of times they don't, the agencies don't have the time to call us back to get the autopsy results. So what we do, as soon as we do the autopsy, that day, we fill out the sheet,
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and it is mailed to those three agencies. I changed that procedure a little bit in this case in order to insure that the information obtained in the autopsy report wasn't disseminated in the general public. (TR 1862)
But because this case generated such intense media coverage, and there was rumors, a lot of rumors, people calling for all of these circumstances, I elected on the cause of death sheet just to put the causes of death on the sheet. I did not say anything about any of the injuries. I didn't tell the prosecutor. I didn't tell the police, and I didn't tell the coroner. I just kept it to myself. And with an ongoing investigation, it was important that only as few people as possible had access to that type of information. I didn't want to disseminate that information to the media and the community. (TR 1863)
MR. DAVIS: Your Honor, if I may exhibit these remaining photographs to the injury and pass the witness.
MR. FORD: Your Honor, due to the hour
THE COURT: We are going to recess just as soon as they have an opportunity to view those pictures.
For those of you in the audience, there's not going to be anything else. We are going to recess until in the morning in 9:30. But the jury is to take your time looking at the photographs. You don't have to come back. All right. Court will be in recess.
